pageok
pageok
pageok
More Thoughts on the Legal Barriers to a Torture Prosecution:
In his post below, my co-blogger David Kopel considers some barriers to criminal prosecutions for torture of detainees during the Bush Administration. It's sort of hard to get into the details of the legal issues here because no one has been charged; the merits would depend on who was charged and for what. With that said, I did want to offer a few tentative thoughts about these issues.

  First, I think the important legal barrier to prosecution that David does not mention is the "entrapment by estoppel" defense, permitting reasonable reliance on an official statement of law -- here, the OLC opinions. How this would apply isn't entirely clear to me, as it would get into some difficult questions of what it means to reasonably rely on memos that assumed a set of facts that may have been inaccurate (such as the effect of the different interrogation methods, assumptions that were a big part of the reasoning of the memos). But that would also presumably depend on the individual prosecuted: Reasonable reliance is very fact-specific, and we would need to know exactly what the defendant knew about what OLC had said.

  The availability of an entrapment by estoppel defense would then raise all sorts of questions about classified information. Say a defendant is indicted, and his defense is that the details of the briefing he received on what he could do specifically allowed what he did. The court would need to get into questions of what information can be disclosed about this under the Classified Information Procedures Act, raising serious tensions between the due process rights of the defendant and the need to keep classified information secret.

  David raises the necessity defense as a possible defense. He writes:
My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.
  Self-defense wouldn't realistically be raised in a case of interrogation, at least barring very strange circumstances, so I think the real issue here is necessity. It turns out that the Supreme Court has not recognized a general necessity defense in federal criminal law, and the caselaw on whether and when it exists is pretty mixed. See generally Steven S. Schwartz, Note, Is There a Common Law Necessity Defense in Federal Criminal Law?, 75 U. Chi. L. Rev. 1259 (2008).

  I agree that the Supreme Court would likely recognize such a defense in the case of criminal charges for torture. At the same time, it's worth noting that the necessity defense (to the extent it exists in federal law) is actually quite narrow: It generally requires an imminent threat and no reasonable legal alternatives. See, e.g., United States v. White, 552 F.3d 240, 247 (2d. Cir. 2009). It wouldn't be enough for a defendant to say that he thought there was a risk of an eventual attack and that the enhanced interrogation techniques were on the whole a good idea.

  Finally, David mentions the Rule of Lenity and the case of Ireland v. United Kingdom. I tend to doubt either would play much of a role. The Rule of Lenity exists, but it is very in narrow in practice, Some observers would say it exists in theory but not in fact. And I'm not sure how Ireland v. United Kingdom is relevant: it is not an interpretation of U.S. law, as I understand it, and in any event it covers only some of the techniques authorized by DOJ in its memos.

  Anyway, I suspect all of this is academic. I don't expect the Obama Administration to charge anyone. And I should stress that my take on the legal issues here are tentative: I usually focus a lot more on surveillance issues than interrogation issues, so I haven't focused on the legal issues here as closely as some others. Still, I did want to offer a somewhat different take on some of the legal issues.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:
Just an Observer:
As I understand Kopel's argument, he isn't analyzing the question of whether anyone could be prosecuted today. He is arguing that Bybee's Aug. 1, 2002 memo to the White House was right on the merits, at least on these propositions.
4.27.2009 10:01pm
Vermando (mail) (www):
I agree. I admired his giving it the old college try, but indeed, he came up short. This fact likely stood out especially strongly to those more recently schooled in criminal law and thus aware of the success of the conservative anti-crime counter-revolution. Many defenses that one would intuitively think should apply will be found, once one actually does the research, not to.

On your first point, I think that everyone recognizes the justness of the "entrapment by estoppel" defense. It explains both why President Obama said at the very beginning that he would not prosecute anyone who relied on the OLC memos in good faith, and why people are getting so hot about the source of those memos. For that reason, I would expect the outrage to continue to follow its recent path. I would be very surprised if we suddenly decided it was just to drag in the CIA agents who relied on the OLC's advice. Likewise, I would be very surprised if any investigations focused on anyone who could credibly claim that defense.

The most interesting point I found in the comments of Mr. Kobel's thread, and something I'd be curious to hear your thoughts on, was that people seemed to agree that the standard with regards to Misters Bybee and Yoo would be a lack of good faith, not simple or even gross negligence. I found this encouraging as a sign of people's legal and moral judgment - it really would be a terrible precedent to harass or prosecute a president's former advisers who gave him their advice in good faith. I think it also makes real future investigations exceedingly unlikely absent the emergence of further information. Of course, Judge Bybee is the wildcard seeing as he still holds a public office, and if he keeps everyone's attention on the topic ... I guess we'll just have to see, won't we.
4.27.2009 10:02pm
Cornellian (mail):
Anyone who tried to defend torturing a prisoner by arguing self-defense or necessity would be laughed out of court and slapped with Rule 11 sanctions, or whatever the criminal procedure equivalent is to Rule 11.
4.27.2009 10:06pm
My Middle Name Is Ralph:
Some rational legal analysis on VC re torture. Nice for a change.
4.27.2009 10:16pm
My Middle Name Is Ralph:
Regarding the estoppel defense, it seems that the cleanest and easiest prosecutorial end around it is that the CIA interrogators apparently exceeded the severity and/or duration set forth in the memos. To the extent, they didn't stick to the letter of the memos, then I'd think the estoppel defense would not apply. Regardless, as noted by Prof. Kerr, the Obama administration seems very clearly to have no desire to prosecute CIA personnel and even if there were a good criminal case against them, I do not expect the Obama administration to pursue it. I'm fine with that.
4.27.2009 10:25pm
zippypinhead:
I'm not so sure entrapment by estoppel is necessarily a get-out-of-jail-free-card here. Unless I'm misremembering, entrapment by estoppel is merely the public-sphere analogue of the well-established "advice of counsel defense," right? That defense can extinguish criminal mens rea, but requires good faith reliance on legal advice that, while perhaps ultimately erroneous, was also rendered in good faith.

Without going to the trouble of firing up Westlaw this late in the evening to pull citations (or worse, actually going out to invade a local law school library with late hours so I can pull one of the treatises on privilege that has a chapter on the AoC defense), I am quite certain there is published caselaw that rejects this defense where either (a) the client manipulated or misrepresented material facts to counsel while seeking the opinion, or (b) counsel did not render the opinion in good faith, as when counsel concocted a results-oriented conclusion that suited the client's needs while deliberately ignoring or mis-construing controlling law. Potentially, either situation could be applicable here.

And then there's the arguable effect on the entrapment by estoppel defense of Nuremberg Principle IV, "the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him," which I seem to recall more than slightly complicated the court martial defense of the My Lai Massacre, for example.
4.27.2009 10:25pm
ReaderY:
But would the statute apply to a doctor doing a partial birth abortion on a third trimester fetus? Why not? It would seem equally applicable.

How would a doctor have any idea such a statute would apply?

What's the difference? The term "person" as used in the Bill of Rights has no more application in one case than the other. And when the term "person" lacks application, we can't use general statutes to impose moral beliefs on professionals without giving them some sort of warning. Nor is it reasonable to impose sorts of penalties we would impose when actual persons are involved.

This is after all a morals offense -- the offense is that people the conduct barbaric, same as the underlying offense in anti-partial-birth-abortion laws. After all, no person was harmed by any of these acts. And the reason people find these things offensive is largely traditional religious beliefs -- there's no more reason for military professionals to be hampered by these sorts of taboos in the discharge of their duties than there is for doctors. These taboos are, after all, in denigration of the nation's history and tradition of choice and freedom, same as anti-abortion taboos. Courts can tolerate these taboo's existence -- the state can also make killing a third-trimester fetus a crime if it wants, and it can require a less painful termination method -- but going on and on with strident emotionalism as if a person were involved is simply out of place. It's a non-person. The state has no more interest in it's death or pain than it has in the death or pain of a third-trimester fetus. Which is to say, some, but not all that much. Get over it.
4.27.2009 10:27pm
My Middle Name Is Ralph:

The most interesting point I found in the comments of Mr. Kobel's thread, and something I'd be curious to hear your thoughts on, was that people seemed to agree that the standard with regards to Misters Bybee and Yoo would be a lack of good faith, not simple or even gross negligence.


I'm still trying to figure out what crime they could be charge with. Conspiracy to commit torture? Aiding and abetting the commission of torture? Crim law was a long time ago, but isn't it clear that these crimes would require a knowing act, not just recklessness? If so, that's going to be extremely difficult to prove beyond a reasonable doubt. Of course, impeaching Bybee for being a feckless torture apologist has no such hurdles.
4.27.2009 10:30pm
tvk:
1. It is funny how all of a sudden it is the conservatives that are relying on foreign law to define "torture." I realize I am painting with a broad brush here; but I suspect at least some overlap between the people who want to pass a constitutional amendment banning citation of foreign decisions and people who think that Ireland v. UK is a great authority for the definition of "torture" under U.S. law.

2. On the same note, the conservative ascendancy has cut back on many of the traditionally pro-defendant doctrines such as the Rule of Lenity. Now will there be a new doctrine that the Rule of Lenity only applies if the criminal defendant is a prosecutor, police officer, CIA agent, or someone exercising government power?

3. If estoppel requires "reasonable reliance," then does the fact that the OLC memos are so facially incompetent as to suggest bad faith and pretext undermine the reliance? It seems the consensus is that Bybee and Yoo should be on the hook if they acted with bad faith, but not if they were "merely" grossly incompetent. But of course all-too-convenient incompetence from people who are normally very competent leads to an inevitable conclusion of bad faith. It is as if Michael Jordan suddenly couldn't dribble. Is it more likely he was grossly incompetent, or is it more likely he deliberately threw the game?
4.27.2009 10:34pm
Public_Defender (mail):
Kerr is right to express skepticism of the Rule of Lenity. If your criminal defense lawyer is relying on the Rule of Lenity to save your skin, you should be packing your toothbrush.

And thanks for the talking-points-free post. It's the best summary of the actual legal issues that I've seen so far.
4.27.2009 10:36pm
jukeboxgrad (mail):
Obama said at the very beginning that he would not prosecute anyone who relied on the OLC memos in good faith


Which doesn't mean much. I think there are indications in the memos themselves that the torturers did not adhere to the guidelines in the memos.

In particular, I think the 2005 Bradbury memos look like an attempt to shift the standards in order to accommodate the fact that the CIA IG discovered in 2004 that the torture actually done in 2003/2002 did not correspond to the limits that Bybee articulated in 8/02. (I listed the sequence here.)

Can someone who tortured in 2003 defend himself by claiming he relied in good faith on a memo that was written in 2005?

This is not the only instance of discovering the relevance of time travel, in this matter.

Ralph: "isn't it clear that these crimes would require a knowing act, not just recklessness?"

I think the sequence tends to show that the memos were tailored to exactly what the client needed, at the moment. Looks like a "knowing act" to me.
4.27.2009 10:37pm
Just an Observer:
Orin: Anyway, I suspect all of this is academic. I don't expect the Obama Administration to charge anyone.

Overall, not an unsreasonable prediction.

As for the question of whether anyone could be prosecuted today, it depends on who that is. There are at least four classes of actors:

1) CIA or military personnel who relied in good faith on the OLC opinions and acted within the four corners of that advice. Here is where the estoppel defense most clearly pertains. Both Obama and Holder (the latter more properly) have unambiguously stated such actors will not be prosecuted.

2) CIA or military personnel who might have exceeded the four corners of the OLC opinions and violated the Torture Act or the War Crimes Act. Such folks, if there are any, could be in deep weeds. A DOJ investigation properly should examine cases individually before making any determination to prosecute or not.

3) OLC lawyers who wrote opinions allowing Torture Act or War Crimes Act violations, if those opinions are not supportable and the lawyers' conduct was not consistent with DOJ standards. This is primarily an ethics question, and is the subject of the OPR investigation. The OPR could decide to recommend no action, could refer the matter for bar discipline or for criminal prosecution. Reportedly OPR is focusing on the question of whether the opinions were created in good faith, or involved undue influence from policymakers. It would seem to take the shocking disclosure of a smoking gun (willful malpractice) to initiate prosecution.

4) Policymakers at the highest level, who asked the OLC for the opinions and gave the orders to the lower-ranking officers. In other words, the policymakers. This is really where folks fear to tread, because under conventional political wisdom, it is argued that the principals are Too Big to Prosecute. The really ugly questions arise if they contrived to get bad-faith legal advice as a fig leaf to rationalize illegal behavior. If there was bad-faith process involved in creating the opinions, it likely involved the senior actors, not the lower-ranking officers.
4.27.2009 10:38pm
Anderson (mail):
Agree w/ _ Ralph _ above, as to the acuity of the post and of Prof. Kerr's prediction re: prosecutions. (Thank god to have a thread on "can we prosecute torture?" rather than "is it torture?")

(That said, Emptywheel has accumulated some pretty darn good circumstantial evidence that the impetus to torture preceded any hard-case detainees, and that it was motivated in no small part by the desire to prove an Iraq-Qaeda connection. Considering how patchy the record is, I suspect that further document dumps could bolster this line of thought.)

Re: conspiracy to commit torture, conspiracies generally have to be proved circumstantially -- you don't usually find a document titled "Our Conspiracy," signed by the parties. Without some internal communications strongly suggesting bad faith, the prosecution is left with explaining to the grand jury why, for instance, the omission of Youngstown is suspicious. I doubt that would get very far, tho it's worth a try. "Mr. Yoo is either incompetent, stupid, or a criminal. Do you really think he's incompetent or stupid, ladies &gentlemen?"

... Has anyone suggested prosecuting CIA counsel Rizzo? He had the IG's report criticizing the torture methods, and being a lawyer, was in a position to see the flaws in the OLC memos. And he's probably in a very good position to roll over on some folks.
4.27.2009 10:57pm
Chris_t (mail):
What am I missing here?

Isn't prosecution problematic when we consider that the only reason the OLC memos exist at all is because of the prior administration's efforts to comply with U.S. Law? Doesn't the fact that the administration attempted to legitimize the entire project make any attempt at prosecutions almost impossible?
4.27.2009 10:59pm
ArthurKirkland:
I haven't seen so much pro-defendant striving by conservatives/Republicans since Scooter Libby was caught.

Do they figure that the rules that might spring their pals wouldn't be transferable to the average "four ounces of dope" case, or are they willing to take a hit in the War On Drugs to avoid convictions of the criminals they like?
4.27.2009 11:02pm
My Middle Name Is Ralph:

I think the sequence tends to show that the memos were tailored to exactly what the client needed, at the moment. Looks like a "knowing act" to me.


I'm not sure I'd draw the same inference you do here. As you note, the interrogation methods of the CIA apparently expanded beyond the original memo. Thus, it is hardly surprising then that OLC is asked to render an opinion about the expanded methods. If the 2002 memo had said that X is the limit and anything beyond X was torture, then the authors reversed themselves in 2005 and said X+1 was not torture, then I might draw the inference that the memos were not done in good faith. But, the 2005 memo as I recall it said that X was not torture (not that X was the limit). Thus, I don't see a logical inconsistency in later saying that X+1 is not torture. Of course, it doesn't prove the opposite either. And, we're probably missing lots of correspondence, emails, and drafts that would shed a lot more light on the development of the memos. If there is to be a viable case against Yoo and Bybee, I think it will have to come from the unknown documentary evidence.
4.27.2009 11:16pm
Barry P. (mail):
Concerning the "we were following orders in good faith" and self-defense lunacy, this is what the UN Convention on Torture, championed by one Ronald Reagan, has to say:


Article 2:
...
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.


Those are both pretty cut and dried. Old Ronnie, ever the straight talker, would simply call bullshit on all the torture defenders in today's GOP.
4.27.2009 11:20pm
My Middle Name Is Ralph:

Isn't prosecution problematic when we consider that the only reason the OLC memos exist at all is because of the prior administration's efforts to comply with U.S. Law?


Your statement begs the question. Was the only reason the OLC memos exist because of an effort to comply with US law or were they a sham designed to provide legal cover to those who ordered torture and tortured?
4.27.2009 11:27pm
Mahan Atma (mail):
"any statute which purports to exclude Self-Defense or Necessity should be unconstitutional."


Somebody should tell Justice Thomas, then, because this is the conclusion reached in the Oakland Cannabis case.
4.27.2009 11:39pm
Ricardo (mail):
Isn't prosecution problematic when we consider that the only reason the OLC memos exist at all is because of the prior administration's efforts to comply with U.S. Law?

Based on the Senate's investigation of detainee abuse, the Bush Administration circulated a proposed list of tactics (probably quite similar if not identical to the list in the now-public Bybee memo) to lawyers in the Army, Navy, Marine Corps and Air Force and received negative reactions. The lawyers suggested at the least that further study would be needed but some went further and said it was likely the tactics violated both the torture statute and UCMJ. A task force was set up to conduct a review but this was terminated by senior Pentagon officials who gave the green light for the tactics while relying on the OLC memos.

Given this chain of events, I have trouble seeing how this is a slam dunk for the (hypothetical) defendants. If senior military lawyers tell you your tactics may very well be illegal while an OLC lawyer says they are OK, the correct thing to do is to set up a serious review of the matter. Of course, the defense that Rumsfeld, Yoo and Cheney will use is that in the months after 9/11, there was genuine urgency and they did not have time to wait for any kind of exhaustive review. But then, that sounds like a necessity defense, not a defense of relying on sound legal advice.
4.27.2009 11:43pm
Bruce Hayden (mail):
3) OLC lawyers who wrote opinions allowing Torture Act or War Crimes Act violations, if those opinions are not supportable and the lawyers' conduct was not consistent with DOJ standards. This is primarily an ethics question, and is the subject of the OPR investigation. The OPR could decide to recommend no action, could refer the matter for bar discipline or for criminal prosecution. Reportedly OPR is focusing on the question of whether the opinions were created in good faith, or involved undue influence from policymakers. It would seem to take the shocking disclosure of a smoking gun (willful malpractice) to initiate prosecution.
What seems to be assumed here, but is far from proven, except by those who likely went into this with preconceived notions, is that there were indeed Torture Act or War Crimes Act violations and that they were justified by the memos. This is taken as given by most here, and has yet to be proven, or, indeed, shown very clearly.

And, indeed, that would be one big problem with going after the attorneys involved - that without a showing that such violations existed, then there could not be an underlying crime by the attorneys. This is almost akin to the problem of accomplice or contributory crimes - you really need to prove the underlying crime first. And that would seem to be somewhat unlikely with the Obama Administration's decision not to prosecute the people actually performing the acts alleged to be torture.

Bar discipline is either going to be impossible due to classification problems, or will appear to be politically motivated. The proof problems there would seem to be immense, esp. since the state bars would not have the same sorts of powers available to them as would federal prosecutors to acquire the needed evidence. They would find themselves arguing that the attorneys justified illegal behavior, without the ability to prove that, ultimately basing their conclusions on the NYT and Volokh.com comments. Absent federal convictions, they would need to essentially try the cases themselves. Also, keep in mind that attorneys routinely give much more questionable opinions all the time, and where should they draw the line?
4) Policymakers at the highest level, who asked the OLC for the opinions and gave the orders to the lower-ranking officers. In other words, the policymakers. This is really where folks fear to tread, because under conventional political wisdom, it is argued that the principals are Too Big to Prosecute. The really ugly questions arise if they contrived to get bad-faith legal advice as a fig leaf to rationalize illegal behavior. If there was bad-faith process involved in creating the opinions, it likely involved the senior actors, not the lower-ranking officers
They fear to tread here for good reason - what goes around, comes around. Holder seems more than willing to stretch the line already, and if his department goes after Bush (43) Administration people, expect that pretty much everything he did as AG will be investigated by the next Republican administration.

Many here claim that this is not a policy dispute. That is not the view from the right. What is forgotten is that this all happened shortly after 9/11, and the general consensus around the country and throughout the government, including both parties in Congress, was that terrorists aiming at killing Americans did not deserve much in the way of protection. Those involved in those decisions remember why they were made, even if those attacking them do not. And Democrats going after Republicans high in the Bush Administration for what the Republicans see as opportunistic political reasons will assuredly be remembered in 4-8 years when they have regained the Presidency (and the DoJ).

But again, you have the proof problem. I seriously doubt that you are going to find a memo from Darth Cheney requiring an opinion justifying torture. Maybe one from the AG asking for an opinion as to the limits of allowable actions in this area, but unlikely a smoking gun. Sure, maybe the attorneys reading the request might have thought that they were supposed to justify whatever the CIA, etc. wanted to do. But not anything that could not be construed innocently.
4.27.2009 11:52pm
Chris_t (mail):

Your statement begs the question. Was the only reason the OLC memos exist because of an effort to comply with US law or were they a sham designed to provide legal cover to those who ordered torture and tortured?



A fair point.

Assuming arguendo that the memos were a sham designed to provide legal cover for otherwise illegal acts, aren't we still left with the difficulty of proving that fact, when the memos themselves provide the best evidence of culpability for the policymakers? What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any?

Even though I'm opposed to divisive prosecutions and investigations, I'm trying to keep an open mind here. If the law was broken, then I think prosecutions ought to be at least considered. But it seems there's a problem with intent. If the memos were relied on in good faith, I don't think you even have to reach the question of an affirmative defense, because there's no way to prove an intent to carry out the proscribed acts.
4.27.2009 11:55pm
Chris_t (mail):
I see Ricardo answered that question. Belay my last.
4.27.2009 11:57pm
WNB (mail):

Somebody should tell Justice Thomas, then, because this is the conclusion reached in the Oakland Cannabis case.

No, the Oakland case held that the statute did not provide a necessity defense but did not decide whether such a defense would be constitutionally required.
4.27.2009 11:59pm
Cornellian (mail):
"What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any? "

Suppose Bybee testifies that he had initially reached the opposite conclusion but "changed his mind" after getting a call from Addington saying we really, really, really want to torture these guys in the interests of national security. Suppose Bybee's testimony against Cheney and Addington is part of his plea bargain? Would that be evidence of the purpose of the memos?
4.28.2009 12:01am
Chris_t (mail):
Why yes, I suppose it would, assuming you could get Bybee to roll.

Now this is the kind of hypo I like. More my speed:)
4.28.2009 12:04am
PC:
Some rational legal analysis on VC re torture. Nice for a change.

Prof. Kerr's analysis is as rational as any other conspirator on this blog. Someone's opinion of his analysis may -- unfortuanetly -- depend on partisan divides.
4.28.2009 12:05am
Ben P:

Anyone who tried to defend torturing a prisoner by arguing self-defense or necessity would be laughed out of court and slapped with Rule 11 sanctions, or whatever the criminal procedure equivalent is to Rule 11.


Just FYI there really is no equivalent to Rule 11 as far as criminal defendants are concerned, except for the much narrower ethical rules against knowingly presenting false evidence, or even more remotely the ethical rules for filing motions for no reason other than to delay, harass or obstruct. The "do you really want to spend the next six months going blind over paperwork because you caught a guy with half an ounce of oregano?" bit might still get you in trouble but if you've got an actual defense you intend to offer in court, you could probably try to get it in, even if it is patently ridiculous.
4.28.2009 12:05am
Cornellian (mail):
And along those lines Chris, here's an interesting couple of paragraphs from Charlie Savage's 4/22/2009 story in the NY Times.

"The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law." (emphasis added)
4.28.2009 12:12am
PC:
If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers

Partisan witchhunt!
4.28.2009 12:15am
My Middle Name Is Ralph:

And, indeed, that would be one big problem with going after the attorneys involved - that without a showing that such violations existed, then there could not be an underlying crime by the attorneys. This is almost akin to the problem of accomplice or contributory crimes - you really need to prove the underlying crime first. And that would seem to be somewhat unlikely with the Obama Administration's decision not to prosecute the people actually performing the acts alleged to be torture.


First, you seem not to know that there is no requirement that all co-conspirators be tried to bring charges against some. The notion that the CIA interrogators would have to be tried and convicted before any charge could be brought against Bybee or Yoo is just wrong.

Second, proving that the underlying acts sanctioned were torture would be the easy part of any prosecution of Bybee or Yoo. Of course, the prosecution would likely need to prove some sort of bad faith in issuing the memos. If the prosecution can get over this hurdle, it will almost necessarily have proven that the underlying actions were torture.


What is forgotten is that this all happened shortly after 9/11, and the general consensus around the country and throughout the government, including both parties in Congress, was that terrorists aiming at killing Americans did not deserve much in the way of protection.


Besides being wrong about many of the memos (they were drafted in 2005!), you're also wrong about the immediate aftermath of 9/11. There was never any consensus around the country that we should torture or violate our own felony laws. That's just fanciful thinking of the torture apologists and those unpatriotic souls who would trample our American ideals such as the respect for the rule of law.
4.28.2009 12:15am
My Middle Name Is Ralph:

Assuming arguendo that the memos were a sham designed to provide legal cover for otherwise illegal acts, aren't we still left with the difficulty of proving that fact, when the memos themselves provide the best evidence of culpability for the policymakers? What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any?


Yes, I suspect it would be quite difficult to prove bad faith in issuing the memos. But, I can easily imagine drafts, emails, etc. telling a damning story of how the memos came to be and of course it is not unheard of for one defendant to cooperate in testifying against another in exhchance for leniency. Right now, this is all speculation. But, the Office of Professional Responsibility has been investigating the matter. We'll know a lot more after their report comes out.
4.28.2009 12:28am
Mahan Atma (mail):
"No, the Oakland case held that the statute did not provide a necessity defense but did not decide whether such a defense would be constitutionally required."


So the Court said that the statute said X, even if X is unconstitutional?

Sorry, but if the Court holds that the statute says X, the implication is that X is constitutional.
4.28.2009 12:31am
Mahan Atma (mail):
Here's an idea: Why doesn't Congress put a necessity defense into the torture statute? That would take the "ticking time-bomb" argument off the table.

After all, if there was really a bomb somewhere ready to go off any second, and torture was used to stop it, no jury in the world vote to convict.

On the other hand, if the interrogators had no reasonable belief that they were preventing an imminent disaster through torture, they should be convicted.

What's the counter-argument to that?
4.28.2009 12:43am
Just an Observer:
Chris_t: Assuming arguendo that the memos were a sham designed to provide legal cover for otherwise illegal acts, aren't we still left with the difficulty of proving that fact, when the memos themselves provide the best evidence of culpability for the policymakers? What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any?

We don't know yet. The OPR investigation reportedly is focusing on extrinsic communications -- email trails, etc. -- between OLC and policymakers. I assume OPR staff was able to interview folks on the record, but I really don't understand the whole process.

If there is no smoke in the OPR report suggesting bad faith, I expect that ends the criminal matter. If there is, it would take a real special counsel with a grand jury to try to find any fire.

Outside of hypotheticals, we can't really take that speculation much further until the OPR report is out. (I don't know if it is a settled whether all the detail of the report will be public, but of course it will be available to Holder.)
4.28.2009 12:52am
Mahan Atma (mail):
"What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any?"


This is why prosecutors are provided with tools like "grand juries", "subpoenas", and "immunity" to witnesses who can testify to what they know. It's a bizarre concept, I know... but somehow prosecutors are routinely able to use these tools to investigate far less obvious crimes.
4.28.2009 12:57am
PC:
Here's an idea: Why doesn't Congress put a necessity defense into the torture statute? That would take the "ticking time-bomb" argument off the table.


That would be an amendment to the current torture statute (a simple legislative action) and the withdrawal from a few treaties.

After all, if there was really a bomb somewhere ready to go off any second, and torture was used to stop it, no jury in the world vote to convict.

That's an affirmative defense, something that has been well established in common law.

On the other hand, if the interrogators had no reasonable belief that they were preventing an imminent disaster through torture, they should be convicted.

That would be the rule of law.

What's the counter-argument to that?

Investigating people for the potential violation of federal law is a partisan witch hunt.
4.28.2009 1:02am
CDU (mail) (www):
So the Court said that the statute said X, even if X is unconstitutional?

Sorry, but if the Court holds that the statute says X, the implication is that X is constitutional.


Only if the question of constitutionality was before the court. If none of the parties to the case argued that X was unconstitutional, the court isn't necessarily going to declare it unconstitutional on their own initiative.
4.28.2009 1:03am
Mahan Atma (mail):
"That would be an amendment to the current torture statute (a simple legislative action) and the withdrawal from a few treaties."


Congress is allowed to do that.

"That's an affirmative defense, something that has been well established in common law."


Read the Oakland Cannabis case. There is a very strong implication that if Congress does not explicitly provide for a necessity defense, there is none.
4.28.2009 1:07am
jukeboxgrad (mail):
ralph:

But, the 2005 memo as I recall it said that X was not torture (not that X was the limit)


I'm not sure I grasp the distinction you're raising, but let me give it a try. Let's just consider the 2002 memo. I think it more or less took the following form: 'X is not torture.' I think you're pointing out the difference between saying that, and saying this: 'X is not torture, but X is the limit, and beyond X is torture.' But is there really any difference there?

Now let's assume in 2003 that CIA did X+1 (I think this is what the 2004 CIA IG report is all about). Forget about the 2005 memos (because they shouldn't matter, right?). How can I now use the 2002 memo as my defense? I cannot claim I stayed within the four corners of the memo. The memo did not explicitly say X+1 is torture, but isn't that implied? After all, if I can do X+1 and hide behind the memo, why not do X+1000 and also hide behind the memo? Also, I might end up admitting that prior to the memo, I always understood that my proper limit was X-1. So how can I use the memo as an excuse for doing anything beyond X?

we're probably missing lots of correspondence, emails, and drafts that would shed a lot more light on the development of the memos


For sure. But it's still fun to see how far we can get with what we have.

===================
hayden:

if his [Holden] department goes after Bush (43) Administration people, expect that pretty much everything he did as AG will be investigated by the next Republican administration.


I think "pretty much everything he did as AG will be investigated by the next Republican administration." Period. Whether or not he "goes after Bush (43) Administration people." So I think that's the wrong reason to refrain from following the facts where they lead. I think that with certain people, appeasement gets you nowhere. I think your comment is basically a kind of threat (I don't mean in any kind of personal sense, so please don't take my observation personally).

this all happened shortly after 9/11


Not exactly. The Bradbury memos were written in 2005. And did torture occur in 2006, 2007 and 2008? The first 20 days of 2009? Who knows?

maybe the attorneys reading the request might have thought that they were supposed to justify whatever the CIA, etc. wanted to do


I think the Bybee memo (especially) reads like stenography: 'you say A, so I assume A is true, and I don't really need to give it much thought. What else do you need?'

the general consensus around the country and throughout the government, including both parties in Congress, was that terrorists aiming at killing Americans did not deserve much in the way of protection.


That's one perspective. Here's another one, from Cato:

Of Course It Was Torture … Imagine if, shortly after 9/11, someone had told you that the US government would adopt an interrogation policy based on Chinese Communist techniques designed to elicit false confessions. You'd have thought that person was pretty cynical. But he'd turn out to be exactly right. … Beaten savagely by Egyptian torturers, one victim of our "extraordinary rendition" program concocted a story about Saddam Hussein giving Al Qaeda WMD training. That story made it into Colin Powell's UN Security Council speech selling the Iraq War.


False confessions (produced under torture) from al-Libi (and probably others) were also used to sell the war. This has been summarized as follows:

torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda


(Some evidence in that regard here.) So if that was the primary purpose for the torture (rather than preventing the next attack), I wonder how that effects the legal picture.

According to Soufani, Zubaydah was singing until the CIA started torturing. (See also pdf, p. 111 in Adobe Reader.) But if what we really wanted was false confessions to sell the war, rather than solid intel to stop the next attack, then switching from FBI interrogation to CIA torture was actually a rational strategy.

To catch a crook you have to think like a crook, right?
4.28.2009 1:09am
Mahan Atma (mail):
"Only if the question of constitutionality was before the court. If none of the parties to the case argued that X was unconstitutional, the court isn't necessarily going to declare it unconstitutional on their own initiative."


Come on. Can you think of a single case where the Court reached a construction of a statute saying "X", and then the same Court immediately turned around and declared "X" to be unconstitutional, just because the question was formally presented?
4.28.2009 1:15am
Mahan Atma (mail):
'Can you think of a single case where the Court reached a construction of a statute saying "X"...


And to emphasize, in Oakland Cannabis, the statute did not explicitly say "X" ("X" being "no necessity defense"). Rather, the Court read "X" into the statute.
4.28.2009 1:20am
PC:
Congress is allowed to do that.

Agreed, which is why I think it is instructive (there is no exception in the statute for a "ticking time bomb").

Read the Oakland Cannabis case. There is a very strong implication that if Congress does not explicitly provide for a necessity defense, there is none.

Thank you for the reference (532 U.S. 483?).
4.28.2009 1:23am
PC:
There is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute.

It's the 9th circuit talking about drugs[0], but ouch. Torture defenders?

[0] - funny, yes
4.28.2009 1:34am
PC:
4.28.2009 1:35am
PlugInMonster:
What will be of all your legal discussions when Manhattan is a smoking crater? Think, people think! We need to torture to prevent a city getting nuked!
4.28.2009 1:46am
My Middle Name Is Ralph:

I'm not sure I grasp the distinction you're raising, but let me give it a try. Let's just consider the 2002 memo. I think it more or less took the following form: 'X is not torture.' I think you're pointing out the difference between saying that, and saying this: 'X is not torture, but X is the limit, and beyond X is torture.' But is there really any difference there?

Now let's assume in 2003 that CIA did X+1 (I think this is what the 2004 CIA IG report is all about). Forget about the 2005 memos (because they shouldn't matter, right?). How can I now use the 2002 memo as my defense? I cannot claim I stayed within the four corners of the memo. The memo did not explicitly say X+1 is torture, but isn't that implied? After all, if I can do X+1 and hide behind the memo, why not do X+1000 and also hide behind the memo? Also, I might end up admitting that prior to the memo, I always understood that my proper limit was X-1. So how can I use the memo as an excuse for doing anything beyond X?


We need to distinguish between (1) the CIA interrogators and (2) the memo writers.

As to the CIA interrogators, I agree with you that to the extent that they went beyond the 2002 memo, then they probably can't use it as a defense.

My original point had to do only with the lawyers. The CIA is doing what I'll call X and the Bush administration asks the lawyers to write an opinion about whether X is torture. The lawyers do this and in 2002 say X is not torture. Then, the CIA goes beyond what's in the 2002 memos and does what I'll call X+1. In response, the Bush administration asks the lawyers to write a new memo addressing X+1. In 2005, the lawyers say X+1 is not torture. Can we infer from these facts that the lawyers acted in bad faith/knowingly wrote a sham legal opinion? If the 2002 memo had said X is the limit, then I might draw that inference since they would be changing their opinion. But, if the 2002 memo merely said X is not torture and expressed no opinion about anything beyond X, then I don't think it's a fair inference that the memos were written in bad faith. I think the actual situation is the latter.
4.28.2009 1:53am
Vermando (mail) (www):

Barry P.:
Concerning the "we were following orders in good faith" and self-defense lunacy, this is what the UN Convention on Torture, championed by one Ronald Reagan, has to say:


Article 2:
...
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.


Those are both pretty cut and dried. Old Ronnie, ever the straight talker, would simply call bullshit on all the torture defenders in today's GOP.

1) stop reading so much Andrew Sullivan. President Reagan, God bless the man, hardly was a champion of this thing and hardly implemented it in a way that was "cut and dried." Indeed, I almost choked when Sullivan, in similar tones to those you use here, so I apologize if I'm getting your reference wrong, quoted President Reagan's signing statement ratifying the convention and highlighted that Reagan spoke of the convention's prohibition on "other inhuman treatment or punishment." I almost choked because President Reagan very deliberately did not incorporate this section of the Convention into its domestic implementing legislation. In other words, he watered the puppy down; for our current purposes, he didn't champion it.

2) More important, the argument is not that the interrogators were following orders but that they had been told by the competent and responsible authority that what they were doing was not in fact illegal. It seems similar I understand. In the first instance, though, your superior officer orders you to commit torture and you rely on that - essentially a plea of duress or ignorance - as a defense. That is clearly not permitted.

In the second you are not under any duress and instead reasonably rely in good faith on the advice of your government's attorneys specifically charged with interpreting such vaguely worded statutes. This second defense is likely not forbidden by the convention.

More to the point, if it is forbidden then, indeed, those protesting these prosecutions are probably right - we really will be paralyzing our agents from acting in the future and we will be punishing people who, from the perspective of their subjective mental state, are arguably innocent. I don't want to take a final stance on this point, but it's important to realize that what's at stake in the two scenarios is qualitatively different.
4.28.2009 2:06am
Vermando (mail) (www):

Mahan Atma (mail):

"What kind of extrinsic evidence could be relied on to prove that the stated purpose of the memos is to provide legal cover for otherwise illegal acts? Is there any?"



This is why prosecutors are provided with tools like "grand juries", "subpoenas", and "immunity" to witnesses who can testify to what they know. It's a bizarre concept, I know... but somehow prosecutors are routinely able to use these tools to investigate far less obvious crimes.

I don't know if it's that simple. Yes, a prosecutor has tools by which to find evidence, but that only begs the questions - what kind of evidence would he be looking for; what, in this context, would yield a reasonable inference of lack of good faith?

I say it's not that simple because the same issue is frequently faced in corporate law and other fiduciary duty contexts and, well, the answer is hardly ever simple.

With regards to the memos, most of the arguments I've heard infer this lack of good faith from their terrible quality, sort of a super-gross-negligence standard past which one concludes that there's no way the author was acting in good faith. Maybe this works on a theoretical level, but in the fiduciary or corporate contexts the behavior has got to be beyond the pale - well beyond gross negligence - to reach this standard. In the present case, you will likely need a heck of a lot more than subjective disagreements about vague treaty terms and references to museums in Cambodia to establish it. So long as a grossly negligent lawyer could still reach that conclusion acting in good faith - and that's a really bad lawyer - you're not there.

Maybe a prosecutor will find other evidence, but unless he finds something beyond what we've seen thus far - unless he goes beyond "but these memos are really, really terrible," I don't think that we're going to meet it. So, the question remains, what else might he find - or what would we want him to produce - before we would be comfortable moving ahead with some types of charges?

This is one reason, I think, that the accusations about conducting the interrogations to gin up evidence about Iraq are so explosive. Absent such an accusation, I think we'd be looking at a sort of cultural summary judgment by which we'd have to let these men lead their lives. This would entail us accepting, as we regularly do in the corporate context, that sometimes our agents will make terrible calls that are nonetheless made in good faith and so do not merit punishment.

I don't know - I'm curious to see what happens.
4.28.2009 2:15am
PC:
More important, the argument is not that the interrogators were following orders but that they had been told by the competent and responsible authority that what they were doing was not in fact illegal. It seems similar I understand. In the first instance, though, your superior officer orders you to commit torture and you rely on that - essentially a plea of duress or ignorance - as a defense. That is clearly not permitted.

In the second you are not under any duress and instead reasonably rely in good faith on the advice of your government's attorneys specifically charged with interpreting such vaguely worded statutes. This second defense is likely not forbidden by the convention.


This is actually quite compelling. The federal torture statute (like most other laws) does not offer ignorance as a defense. The statute may provide for an affirmative defense under common law, but that still fails to address the treaties we are party to. So things get complicated.

The problem that any CIA agent involved in this faces is that from press reports -- including a named FBI agent -- the FBI withdrew their participation when "enhanced interrogation techniques" were introduced. It could have been for reasons of efficacy, but really? That's a major problem in mounting a defense of not knowing that these techniques were torture, even before we get to the post hoc justification memos.

I really don't give a shit about the left/right aspect of this, I just want to know what was done in our name.
4.28.2009 2:36am
jukeboxgrad (mail):
ralph:

My original point had to do only with the lawyers.


OK, got it. That's what I didn't realize. Thanks for explaining.

If the 2002 memo had said X is the limit, then I might draw that inference since they would be changing their opinion. But, if the 2002 memo merely said X is not torture and expressed no opinion about anything beyond X, then I don't think it's a fair inference that the memos were written in bad faith


OK, I think I see what you're getting at. By comparing the memos in certain ways, we might notice certain signs of bad faith.

But I think you would probably agree that we might see signs of bad faith that have nothing to do with comparing 2002 with 2005. For example, notice what Bybee says about sleep deprivation (paraphrase): 'it's done at SERE for 48 hours without apparent harm; therefore your plan to do it for 11 days is fine.' That seems like quite a leap. Is "bad faith" the right term to describe that leap? I'm not sure. And the issues with waterboarding are similar.

Also, it might not always be the case that Bybee "expressed no opinion about anything beyond X." For example, he approved "limited" sleep deprivation (i.e, up to 11 days). That seems to at least imply a problem with something beyond that limit. But this is a poor example, because for some reason CIA asked Bybee for 11 days, whereas they asked Bradbury for 'only' 180 hours.
4.28.2009 2:39am
PC:
And I apologize for cursing. That was uncivil.
4.28.2009 2:40am
jukeboxgrad (mail):
pc:

The problem that any CIA agent involved in this faces is that from press reports -- including a named FBI agent -- the FBI withdrew their participation when "enhanced interrogation techniques" were introduced.


Yes. And FBI didn't just leave silently. They articulated their concerns to CIA:

Thomas described for the OIG the techniques that he saw the CIA interrogators use on Zubaydah after they took control of the interrogation. Thomas said he raised objections to these techniques to the CIA and told the CIA it was "borderline torture." He stated that Zubaydah was responding to the FBI's rapport-based approach before the CIA assumed control over the interrogation, but became uncooperative after being subjected to the CIA's techniques.


pdf; See p. 111 in Adobe Reader. Emphasis added. Also see here.
4.28.2009 2:47am
Fugle:
A criminal defendant is entitled to a jury trial, so I don’t believe that there is any such thing as a “frivolous” defense, it all falls under the rubric that the State has to prove its case. I think necessity and possibly self-defense would (have to) be raised and I would expect that there is a good likelihood they would be effective. Not necessarily because either would fit, but a judge would have a hard time keeping them from the jury - and it isn’t too much of a stretch to think the panel would be sympathetic to nullification.
4.28.2009 3:06am
Public_Defender (mail):

. . . I think necessity and possibly self-defense would (have to) be raised and I would expect that there is a good likelihood they would be effective. Not necessarily because either would fit, but a judge would have a hard time keeping them from the jury - and it isn’t too much of a stretch to think the panel would be sympathetic to nullification.

Judges can and regularly do prohibit defendants from raising defenses not supported by the evidence, partly to discourage jury nullification.

As Kerr points out, there are lots of barriers to prosecuting these guys. But the affirmative defenses of self-defense and necessity are probably not among them. Those defenses exist and are likely available in theory, but the facts of this case don't seem to support the requirements of the defenses.
4.28.2009 5:51am
Mahan Atma (mail):
"I don't know if it's that simple. Yes, a prosecutor has tools by which to find evidence, but that only begs the questions - what kind of evidence would he be looking for; what, in this context, would yield a reasonable inference of lack of good faith?

I say it's not that simple because the same issue is frequently faced in corporate law and other fiduciary duty contexts and, well, the answer is hardly ever simple."


I didn't say it was simple, but it's certainly do-able.

The govt recently obtained several convictions of lawyers and accountants in the case of US v Stein in NYSD. They were accused of writing opinion letters in bad faith to facilitate tax evasion. Replace "tax evasion" with "torture", and it's the same theory of prosecution.
4.28.2009 7:41am
Richard Aubrey (mail):
How's that illegal wiretapping going? Anything change since Jan 20? I recall a number of folks whose Hanes got all knotted and turned inside out and stuff.
You just can't make this stuff up. Fortunately, it's not necessary.

[OK Comments: Richard Aubrey, that is the second entirely irrelevant and obnoxious comment you have made in this thread. I deleted the first one with out comment last night, but now I am giving you a warning: If you would like to comment here, make your comments relevant and civil. If your comments are not relevant and civil, you will be banned. (It doesn't help that your comment makes no sense and reveals a weird misunderstanding of surveillance law; to be clear, though, you are permitted to post uninformed comments so long as they are relevant and civil.)
4.28.2009 8:04am
Leo Marvin (mail):
PlugInMonster:

We need to torture to prevent a city getting nuked!

Care to elaborate?
4.28.2009 8:12am
Oren:

And thanks for the talking-points-free post. It's the best summary of the actual legal issues that I've seen so far.

Don't worry, there's enough thoughtless invective in the comments to make up for it!
4.28.2009 8:13am
Mark in Texas (mail):
Just one minor point is the one raised here

The claim has been made repeatedly that Japanese soldiers were hanged for water boarding American prisoners. Can anybody provide the name of any Japanese soldier who was executed after WW II for water boarding alone? So far the answer seems to be no.

Some Japanese were sentenced to prison for a list of abuses. The water treatment was in that list, but the other things in the list seem like they would have been sufficient to merit a prison term.

I realize that this does not change any of the basics of the argument, but it might help keep down the volume of the partisan shouting if we stick to verifiable facts.
4.28.2009 8:31am
Leo Marvin (mail):
Richard Aubrey:

How's that illegal wiretapping going? Anything change since Jan 20? I recall a number of folks whose Hanes got all knotted and turned inside out and stuff.

If we concede we're not equally outraged by false equivalents, will you stop implying we ought to be?
4.28.2009 8:47am
jukeboxgrad (mail):
mark in texas:

Some Japanese were sentenced to prison for a list of abuses. The water treatment was in that list, but the other things in the list seem like they would have been sufficient to merit a prison term.


Yes, those who claim that "the United States executed Japanese war criminals for waterboarding" (Begala's word) might be going a little too far, in the sense that they haven't (as far as I can tell) shown exact proof for that exact claim. But Tom Maguire (whom I generally consider a hack) does a nice job of getting to the point:

supporters of the Bush enhanced interrogation program are not exactly presenting a winning argument by advancing the notion that waterboarding is not a capital offense but only merits decades of hard labor


Even Hemingway concedes:

I am not trying to suggest that waterboarding isn't torture. Those opposed to waterboarding should be content to argue the indisputable fact that it was considered a crime as practiced by the Japanese.


Even when they didn't do it 183 times to one person, I think.

Finally, some people like to argue that the Japanese always used a more extreme method, and that we never prosecuted the Japanese for doing it the same way we did it. That argument is addressed here.

==============
We need to torture to prevent a city getting nuked!


Sarcastro is a perfectly good name, so I don't know why he sometimes pops up under other names.
4.28.2009 9:30am
Anderson (mail):
We need to torture to prevent a city getting nuked!

Depends on the city. My ex-girlfriend lives in Seattle; I might spot you Seattle.
4.28.2009 9:32am
Richard Aubrey (mail):
[Deleted by OK on relevance grounds. Again, Richard, you are warned.]
4.28.2009 9:36am
Anderson (mail):
Torture, a universally condemned act of barbarism, is comparable with lying under oath about your affair with an intern.

...?

I don't understand even how that works as a talking point.
4.28.2009 9:40am
jukeboxgrad (mail):
anderson:

I might spot you Seattle.


I think you're trying to be funnier than Leo. Which is no mean feat. Are you succeeding? Close call. When I grow up I want to be half as funny as either of you.

By the way, it's obvious that you and Leo have some kind of a deal with PIM. It can't be just a coincidence that some of your best material and some of Leo's best material is elicited by PIM's outstanding material.
4.28.2009 9:40am
Anderson (mail):
By the way, it's obvious that you and Leo have some kind of a deal with PIM.

A purely spontaneous collaboration. Trust me on this.
4.28.2009 9:45am
jukeboxgrad (mail):
Yeah right. Do you really think I haven't noticed the distinct absence of any photos showing you, Leo and PIM in the same place? Now pull the other one, as aubrey is wont to say.
4.28.2009 9:49am
jukeboxgrad (mail):
Oh yeah, and sarcastro isn't in that non-existent photo, either. QED. sarcastro, leo, pim and anderson are one and the same. No point trying to deny it.
4.28.2009 9:52am
Anderson (mail):
Obviously, only enhanced interrogation methods will suffice to reveal the truth about the Leo-Anderson-PIM axis.

(You might start in reverse order.)
4.28.2009 9:54am
LizardBreath (mail):
I'm not aware of any basis for saying that 'advice of counsel' is a defense to violation of the Torture Act or the War Crimes Act -- doesn't it apply primarily in situations where knowledge of the illegality of the charged conduct is an element of the offence?

And entrapment by estoppel, to the extent that it's treated differently in this situation differently from 'advice of counsel', is ridiculous. The logic of an estoppel defense -- that a defendant is entitled to rely on the objectivity of a neutral official statement of law -- is destroyed when the official making the relied upon statement of law is engaged in the same endeavor, facilitating interrogations, as the defendant. If entrapment by estoppel were a valid defense in this situation, you could prevent any war crime prosecution by having a lawyer standing by and blessing the conduct.
4.28.2009 10:16am
Richard Aubrey (mail):
Anderson. It wasn't me made the perjury connection. Floridan was talking about why nobody bothered with Clinton's exrends.
Take up your inability to understand stuff with him.

Now, if you have principle, you have an opportunity to show it. Cough.

Most of the Clinton guys are still around. No reference has surfaced that they sought legal advice from government attorneys, so they may not even have that cover. Be easier than the current subject.

You could start with "grab his ass" Gore.

"If" being the operative concept here.

[OK Comments: Richard, my original plan was to just warn you. But these comments are just ridiculous. You are banned. If you think I have banned you unfairly, please do not debate it here: Send me an e-mail and I would be happy to discuss it with you. If you can persuade me I was wrong, I would be happy to un-ban you.]
4.28.2009 10:19am
Oren:
LB, the logic of estoppel is that the same party cannot both counsel a particular action and then say it's a violation of the law. The DOJ said you can do such-and-such and is stuck with that position.

The Supreme Court has ruled (not quite on point, I admit, since this is judicial estoppel but it's the best I got) that once a party takes a legal position, there are no backsies.
4.28.2009 10:27am
LizardBreath (mail):
<i>LB, the logic of estoppel is that the same party cannot both counsel a particular action and then say it's a violation of the law. The DOJ said you can do such-and-such and is stuck with that position.</i>

You do recognize the absurdity of that logic when that 'same party' (an arm of the executive branch) is advising itself, right? The OLC isn't a prosecutorial office independent from the executive, it's "the president's law firm". If a local DA's office internally generated an incorrect opinion about how its investigators were entitled to treat suspects, a claim that wrongdoing consistent with that internal opinion could not be prosecuted due to estoppel would be ridiculous.
4.28.2009 10:38am
LizardBreath (mail):
Also, Oren? From the case you cited:

This is not a case where estoppel would compromise a governmental interest in enforcing the law. Cf. Heckler v. Community Health Services of Crawford Cty., Inc., 467 U.S. 51, 60.
4.28.2009 10:40am
MarkField (mail):
Let me just reinforce LB's point. The proponents of a "strong" unitary executive theory have a real problem with any estoppel defense. By the logic of that theory, all members of the executive branch are, in legal effect, "the President", i.e., they only carry out the tasks he would do himself if he were physically capable of it. By this logic, the OLC was the President writing a memo to himself, which he then acted on by "himself" torturing the detainees. That's not a persuasive defense, and it certainly is not an estoppel.

While I think that Congress can certainly include defenses of advice of counsel or necessity to the torture statute, I have some concerns about a court adding them by common law. Such defenses would appear to conflict with Section 2 of the Convention Against Torture, which the court should be bound by in the absence of Congressional action.
4.28.2009 10:58am
Oren:


You do recognize the absurdity of that logic when that 'same party' (an arm of the executive branch) is advising itself, right? The OLC isn't a prosecutorial office independent from the executive, it's "the president's law firm".

So, it's your position that the DOJ could tell me that doing X is legal and then turn around an indict me the next day for doing X?


By the logic of that theory, all members of the executive branch are, in legal effect, "the President", i.e., they only carry out the tasks he would do himself if he were physically capable of it.

This is a facile interpretation of the unitary executive theory that could only be held by someone that does not believe it. If you want to address the UE theory seriously, start here:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.

The President supervises, not acts vicariously. Discuss.
4.28.2009 11:09am
Oren:

Such defenses would appear to conflict with Section 2 of the Convention Against Torture, which the court should be bound by in the absence of Congressional action.

When Congress implements a treaty obligation by statute, the text of the statute controls, not the text of the treaty. The Senate can ratify a treaty with reservations and the Congress can implement it with language directly in contradiction to the plain language of the treaty. Whether the rest of the international community will consider such ratification genuine is not the point.
4.28.2009 11:10am
Anderson (mail):
The Senate can ratify a treaty with reservations and the Congress can implement it with language directly in contradiction to the plain language of the treaty.

Right, and in fact, the Congress did that re: the CAT -- it watered down the definition of "severe mental suffering," and IIRC, the Senate ratified the CAT with the reservation that the Eighth Amendment standard restricted the definition of suffering.

The fact of those reservations is a strong clue that *other* provisions of the treaty are *not* obnoxious to the Senate and the Congress, and are thus, if not legally enforceable, at least highly persuasive on the interpretation of the statute.

That said, I am cheerily pulling this out of my ass; I just can't imagine that a court considering an asserted "national security justification" for torture could ignore the CAT's express exclusion of same, and the U.S.'s failure to express any reservation on that point.

If anyone here is actually familiar with the effect of treaties in the interpretation of their statutory implementations, well, pull up a chair and tell us about it.
4.28.2009 11:26am
LizardBreath (mail):
So, it's your position that the DOJ could tell me that doing X is legal and then turn around an indict me the next day for doing X?

No, but as far as I know you don't work for the DOJ, and the DOJ has no institutional interest in doing X.

Do you have any support for the proposition that an entrapment by estoppel defense applies to crimes committed by individuals acting for the federal government? We told ourselves that doing X was legal, so now we can't prosecute ourselves? I don't know as a matter of certainty that there's no support for that, but I'd be very surprised if there were.

As an analogy, think of the clear principle of military law that a soldier is not relieved of legal responsibility for his or her actions because the soldier is following orders -- a criminal act committed in obedience to an illegal order remains criminal. If the "internal entrapment by estoppel" defense you propose were good law, that would be the Nuremberg defense.
4.28.2009 11:26am
MarkField (mail):

This is a facile interpretation of the unitary executive theory that could only be held by someone that does not believe it.


Of course it's facile; that was my point. We heard a great deal of nonsense from people during the Bush years about the control the President had over the Executive Branch, but the first time that theory poses a problem, they ditch it.


When Congress implements a treaty obligation by statute, the text of the statute controls, not the text of the treaty.


Yes, and I agreed to that. That wasn't my point. My point involved the ability of the courts to recognize defenses which aren't provided by Congress, particularly when those defenses appear to be inconsistent with the underlying treaty.
4.28.2009 11:27am
Anderson (mail):
If the "internal entrapment by estoppel" defense you propose were good law, that would be the Nuremberg defense.

That was the subtle thing about Eichmann's defense, as Arendt pointed out. Eichmann could look to such respected jurists as Carl Schmitt for the proposition that Hitler's word was law. Thus, in aiding the murder of the European Jews, Eichmann was not merely following orders; he was following the law.
4.28.2009 11:42am
Joe The Plumber:
False confessions (produced under torture) from al-Libi (and probably others) were also used to sell the war.

This is a hysterical lie you keep repeating as if it is fact.
4.28.2009 12:01pm
wm13:
I think the logic of "entrapment by estoppel" is that all the members of a sovereign entity, other than the defendant, are one. The "unitary executive" theory would add "and that one is the President." So the United States cannot prosecute a CIA agent or anyone else who has been advised by the United States, in advance, that what he was doing is legal. Similarly, if the New York State Attorney General gave advice that certain conduct was legal, the State of New York could not then prosecute that conduct.

The only effect of the unitary executive theory that I can see is to render this kind of estoppel inapplicable to the President himself, since all other officials are no more than his agents, and obviously you can't estop yourself from doing something to yourself. So the United States may prosecute a President even if a Justice Department official previously advised that his conduct was legal, since that communication was no more than the President talking to himself. Of course, since it seems well-established that the President may not be indicted or tried while he is in office, this issue only arises with respect to ex-Presidents.
4.28.2009 12:05pm
Joe The Plumber:
I think the 2005 Bradbury memos look like an attempt to shift the standards in order to accommodate the fact that the CIA IG discovered in 2004 that the torture actually done in 2003/2002 did not correspond to the limits that Bybee articulated in 8/02.

The CIA IG never "discovered" that "torture" took place in 2003 or 2002.
4.28.2009 12:06pm
Oren:

The fact of those reservations is a strong clue that *other* provisions of the treaty are *not* obnoxious to the Senate and the Congress, and are thus, if not legally enforceable, at least highly persuasive on the interpretation of the statute.

Why look at the treaty text at all? There's no reason to -- Congress implemented the treaty exactly the way they wanted in the implementing legislation. If the rule in the US is that all laws are presumed to have common-law defenses unless explicitly said others (as I understand is the case) then the implemented legislation has a common-law defense unless the statute says otherwise.

The implication is that Congress knows how the law work and, in omitting provisions providing strict liability and the lack of common law defense, did so intentionally.


As an analogy, think of the clear principle of military law that a soldier is not relieved of legal responsibility for his or her actions because the soldier is following orders -- a criminal act committed in obedience to an illegal order remains criminal.

Not exactly. An order has be clearly illegal (given the legal knowledge of the soldier).
4.28.2009 12:21pm
zippypinhead:
I quoted it waaaaay above in this thread, but the point got lost in the intervening inane chatter:
Nuremberg Principle IV: "the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him,"
The "moral choice" caveat was inserted for situations like the commanding officer threatening to murder your children if you didn't carry out his unlawful order. Which, as far as I know, didn't even apply to orders from the Office of the Vice President in the previous Administration, let alone OLC opinions, right?

It's far above this pinhead's pay grade to correctly fathom what the exact interplay between international conventions versus common law defenses to Title 18 prosecutions might be, but on its face Principle IV would seem to complicate any entrapment by estoppel defense to unambiguous violations of the CAT.
4.28.2009 12:24pm
trad and anon (mail):
This has probably been discussed to death in other fora, but how could a necessity defense possibly be established? If I recall correctly, the elements of a criminal necessity defense are something like this:

* the defendant acted to avoid a significant risk of harm.
* no adequate lawful means could have been used to escape the harm.
* the harm avoided was greater than that caused by breaking the law.

Both the first and second prongs seem extremely difficult to establish. To qualify under the first prong, the danger must be clear and imminent, not speculative and theoretical. We were not looking for info about ticking time bombs. It would eviscerate the statute to allow a "necessity" defense whenever we wished to acquire general intel about the enemy.

The second prong is even more difficult. The defendant would have to establish that legal means would not have been adequate to avert whatever harm we were trying to avoid. That would be tricky, at the least.
4.28.2009 12:25pm
Mahan Atma (mail):
"We were not looking for info about ticking time bombs."


Good point.
4.28.2009 12:28pm
Anderson (mail):
Why look at the treaty text at all? There's no reason to -- Congress implemented the treaty exactly the way they wanted in the implementing legislation.

If you're following Scalia in rejecting legislative history, then say so. Otherwise, it seems painfully obvious (as in, why am I even having to write this?) that the treaty text gives some indication of what the Torture Act was intended to accomplish.

If the rule in the US is that all laws are presumed to have common-law defenses unless explicitly said others (as I understand is the case)

If that really is the law, then I will agree with you re: the Torture Act. I can't pretend to know whether there are exceptions other than those expressly enacted into law. But if there *is* any wiggle room, then the CAT would obviously be a relevant persuasive authority. We would in effect be opting out of the treaty by allowing such defenses.

... Leaving aside the point that, in all likelihood, no court would reach this issue, b/c there is no colorable "necessity" or "self-defense" motive for torture.
4.28.2009 12:28pm
Oren:

If you're following Scalia in rejecting legislative history, then say so. Otherwise, it seems painfully obvious (as in, why am I even having to write this?) that the treaty text gives some indication of what the Torture Act was intended to accomplish.

I'm not following Scalia here because I don't need to. Garden-variety legislative intent is at least evidence from the same body that wrote the legislation. The text of the treaty has no origin within the confines of the US Congress whatsoever.

I don't think it's fair to assume that the US Congress intends to faithfully reproduce the intent of the treaty in their implementing legislation. This is the core of your argument, no?


... Leaving aside the point that, in all likelihood, no court would reach this issue, b/c there is no colorable "necessity" or "self-defense" motive for torture.

On that much, we agree.

Although, on the question of whether the defense has the right to present such a defense to the jury (perhaps hoping for a nullification) I'm not sure. The defense ought to have the right to present whatever theory they want, but the probative value of a necessity claim is, as you correctly point out, next to nil.


We would in effect be opting out of the treaty by allowing such defenses.

Most international treaties are not implemented to the letter. Small variances in how we interpret the various terms of art are not really sufficient to claim that we've opted out in any meaningful sense.
4.28.2009 12:52pm
MarkField (mail):

If the rule in the US is that all laws are presumed to have common-law defenses unless explicitly said others (as I understand is the case) then the implemented legislation has a common-law defense unless the statute says otherwise.


Two reasons:

1. It's not at all clear that a necessity defense is implied (see citations above in this thread); and

2. The logic works two ways here. One way to look at the issue is to say that Congress passed the torture statute just as it passed any other law, i.e., with the expectation that standard affirmative defenses were allowed and need not be specially provided (but see above). The other is to say that Congress passed the law as part of the implementation of the CAT, which excludes some defenses, which implies that Congress deliberately left those defenses out.

I don't know which way these things work when it comes to treaties, but we can't get the answer just from logic.
4.28.2009 1:16pm
MarkField (mail):

Similarly, if the New York State Attorney General gave advice that certain conduct was legal, the State of New York could not then prosecute that conduct.


In general I agree, but it makes me uncomfortable to allow this defense if the AG told one of his own investigators that the investigator could legally torture a witness in order to get favorable information in a case the AG was prosecuting. That strikes me as creating seriously wrong incentives.

This is probably academic, because I doubt an estoppel defense could be established here.
4.28.2009 1:22pm
LizardBreath (mail):
Even if there were a valid estoppel defense for the torturers, wouldn't that still leave the OLC attorneys who wrote memos vulnerable to criminal liability for conspiracy to torture, regardless of whether they acted in 'good faith'?

Assuming, arguendo, that the treatment of detainees included actions which constitute torture as matter of law (I realize people are still arguing about this): we have a situation where (1) a crime, torture, was committed; (2) the OLC attorneys wrote memos with the intent of faciliating interrogation by methods that (regardless of the OLC attorneys' beliefs as to the state of the law) do legally constitute torture; (3) the OLC attorneys agreed that their actions in writing the memos were meant to assist in the conduct of such interrogations. That looks to me like conspiracy liability.

The OLC attorneys don't have an entrapment by estoppel defense -- they can't have reasonably relied on their own statements of law -- and their 'good faith' understanding of the state of the law is not, as far as I can tell, a defense to violations of the Torture Act. I don't believe the Torture Act has an elevated level of mens rea requiring knowledge of the illegality of conduct violating the act.

As far as I can tell, then, even if the torturers themselves have an estoppel defense, the lawyers don't, and 'good faith mistake of law' or however you'd want to put it, isn't a defense either.
4.28.2009 1:45pm
Andrew J. Lazarus (mail):
Joe the Trolling Plumber: On a good day, even the torture advocates on these threads supply more than one-line comments, instead something backed with a little citation and evidence.

At the very least, could you not litter the thread with conclusory assertions that are contradicted by Bush Administration records themselves? Here is material from 2005, when the GOP controlled Congress and before the extent of torture was recognized.
A high Qaeda official in American custody was identified as a likely fabricator months before the Bush administration began to use his statements as the foundation for its claims that Iraq trained Al Qaeda members to use biological and chemical weapons, according to newly declassified portions of a Defense Intelligence Agency document. The document, an intelligence report from February 2002, said it was probable that the prisoner, Ibn al-Shaykh al-Libi, "was intentionally misleading the debriefers" in making claims about Iraqi support for Al Qaeda's work with illicit weapons. [snip] The document provides the earliest and strongest indication of doubts voiced by American intelligence agencies about Mr. Libi's credibility. Without mentioning him by name, President Bush, Vice President Dick Cheney, Colin L. Powell, then secretary of state, and other administration officials repeatedly cited Mr. Libi's information as "credible" evidence that Iraq was training Al Qaeda members in the use of explosives and illicit weapons. Among the first and most prominent assertions was one by Mr. Bush, who said in a major speech in Cincinnati in October 2002 that "we've learned that Iraq has trained Al Qaeda members in bomb making and poisons and gases."
Now, since Saddam had no Iraqis involved in any such BW/CW project, and a fortiori no Al Qaeda trainees, we can conclude that al-Libi's statements were false. Why did he make these false statements? Because he was rendered to Egypt, where he was tortured.
The very first high-ranking Al Qaeda operative captured—Abu Faraj al-Libbi-was first interrogated by the FBI. But when the FBI wanted to use its normal, go-slow methods, the prisoner was turned over to the CIA—who promptly turned him over to the Egyptians. (NEWSWEEK has reported that as al-Libbi was led to a plane routed for Egypt, a CIA operative whispered in his ear that he planned to “f--- your mother”.) Under the no-doubt rough care of the Egyptians, al-Libbi talked of plots and agents.
You are welcome to refute this evidence. For example, you could claim that al-Libi is lying about torture in Egypt, and that he was rendered there just so he could have more familiar food than the CIA was able to provide. You could even try to show that the Bush Administration's handpicked WMD search team was incompetent and produce the long-promised Iraq weapons cache (Good luck with that, son). But I don't think you can dismiss evidence with a one-line denial of its existence and a blanket statement that people who rely on this evidence are liars. There are other blogs where like-minded people will shower you with dittoes and other bravos for your insightful analysis, but this is not one of them.
4.28.2009 1:47pm
jukeboxgrad (mail):
oren:

the logic of estoppel is that the same party cannot both counsel a particular action and then say it's a violation of the law. The DOJ said you can do such-and-such and is stuck with that position.


I wonder if that would be a reason to think that it's better for the prosecution to be handled by some other entity (like another country, or an international entity).

I'm not making a suggestion, just trying to learn something about this aspect of the law.

================
anderson:

the Congress did that re: the CAT -- it watered down the definition of "severe mental suffering"


FWIW, the Senate reservations are here or here. (The first one looks more official, but the second one is more readable. And I think they're different. I don't know why.) And CAT is here.

I think there is a related question about something that happened along the way from the Senate reservations to USC 2340: the insertion of a new word ("the") in the phrase "the prolonged mental harm."

There's an interesting paper about this ("Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse;" pdf):

The simplified language in the Federal Anti-Torture Statute confirms the list of acts considered to constitute mental torture per the U.S. understanding, but crucially adds the word “the” to create the phrase “the prolonged mental harm.”
4.28.2009 1:54pm
dmv (mail):
Anderson said:

Has anyone suggested prosecuting CIA counsel Rizzo?

Yes, I have suggested that. Though not in written form anywhere. He talked to a class I was in last semester. While it certainly doesn't count as evidence, or a good reason, after that talk I have no doubt that he should at least be disbarred. The attitude of CIA was illustrated nicely by something John Podesta said to CIA employees recently (in a letter), which I'm paraphrasing: "CIA was called on. We responded."

I was struck by how committed Rizzo is to the idea that the CIA ought to do whatever the administration tells them to do, no matter what it takes to do it. Podesta's letter only confirms in my mind that this is the general attitude of CIA. And that is troubling.
4.28.2009 1:54pm
dmv (mail):
P.S. I firmly believe that people like Rizzo, Yoo, Bybee, Addington, and others disgrace the legal profession and that simply by being in it, they lower it. I also believe that ethics actually matter and aren't just another set of rules to wiggle around. That sort of underpins my belief that Rizzo, Yoo, Bybee, Addington, and others should be disbarred. They are a cancer on the profession.
4.28.2009 1:58pm
Anderson (mail):
after that talk I have no doubt that he should at least be disbarred

Tough audience!

... it's remarkable how much that tough-guy attitude disserved the CIA employees for whom Rizzo was supposed to be looking out. CIA counsel isn't the President's counsel, not the White House's counsel, not DOJ's counsel.

If anyone should have been saying "whoa" to Torture, American-Style, it should have been Rizzo. Something tells me he's got it worked out in his head where none of this is his fault. Seems to be a valuable occupational skill.
4.28.2009 2:27pm
Oren:


the logic of estoppel is that the same party cannot both counsel a particular action and then say it's a violation of the law. The DOJ said you can do such-and-such and is stuck with that position.

I wonder if that would be a reason to think that it's better for the prosecution to be handled by some other entity (like another country, or an international entity).

Sure, but we get to prosecute Garzon for imprisoning ETA and shutting down their newspaper in violation of the basic human right to free expression (which must find its zenith somewhere near, if not at, newspaper publishing).
4.28.2009 2:29pm
Oren:


I was struck by how committed Rizzo is to the idea that the CIA ought to do whatever the administration tells them to do, no matter what it takes to do it. Podesta's letter only confirms in my mind that this is the general attitude of CIA. And that is troubling.


And I'm struck by the apparently acceptable notion that functionaries in the government have a newfound right to veto the decisions of the elected officials that supervise them. I wonder how will you feel if the shoe is on the other foot -- if an agency refuses to implement a policy you prefer implemented by a winning candidate that you supported?

I fear untrampled executive power (although I differ in the remedy) but I fear an independent, unelected and unchecked bureaucracy -- especially in the military -- much more. We elect politicians to implement their policies. If we elect buffoons, we deserve buffoonery. Nothing more, nothing less. It is not in the job description of the CIA lead counsel to object to the buffoonery.

I will say this: I hope there are enough principled folks in the Federal gov't that will speak out and, if need, resign (Comey) if they feel morally unable to implement the policy of the elected officials. That is the honorable thing to do because it sheds public light on the issue in a way that empower Congress and the electorate to remedy the issue.
4.28.2009 2:34pm
zuch (mail) (www):
Prof. Kerr:First, I think the important legal barrier to prosecution that David does not mention is the "entrapment by estoppel" defense, permitting reasonable reliance on an official statement of law -- here, the OLC opinions. The "entrapment by estoppel" defence is inapplicable unless you can show that the higher-ups induced the behaviour with the purpose of later prosecuting them. U.S. v. Barker was not such a defence; it was a "good faith reliance on apparent authority" defence.

Cheers,
4.28.2009 2:52pm
Anderson (mail):
And I'm struck by the apparently acceptable notion that functionaries in the government have a newfound right to veto the decisions of the elected officials that supervise them

Oren, I am puzzled. When the President wants to do something illegal, and asks OLC for its opinion, are you contending that OLC should tell him it's legal?

Does OLC have some "veto" power that I've been unable to find in the Constitution? (Article 11 again?)

The President is free to tell OLC "thanks for the advice, but I interpret the Constitution differently" and proceed on that basis.

The people who work for the President, and who risk jail if they carry out illegal orders, are certainly entitled to have their departmental counsel advise them independently as to their guess whether the courts will agree with the President.
4.28.2009 3:06pm
Anderson (mail):
I fear untrampled executive power

I am not quite to the point of wanting Bush *trampled* yet, but let's see what further revelations may hold.
4.28.2009 3:07pm
Oren:

I am not quite to the point of wanting Bush *trampled* yet, but let's see what further revelations may hold.

Careful now. My misspellings might trample Obama as well if they get out of control.
4.28.2009 3:12pm
Oren:

Oren, I am puzzled. When the President wants to do something illegal, and asks OLC for its opinion, are you contending that OLC should tell him it's legal?

The OLC lawyers should produce an opinion to the best of their ability at discerning what the law is.


The President is free to tell OLC "thanks for the advice, but I interpret the Constitution differently" and proceed on that basis.

Indeed. If I'm not mistaken, he is free to fire the top two layers of the OLC as well.


The people who work for the President, and who risk jail if they carry out illegal orders, are certainly entitled to have their departmental counsel advise them independently as to their guess whether the courts will agree with the President.

That's tricky, because you creating an independent source of power inside the executive branch (since, iirc, department counsel and ig's cannot be fired at will by the POTUS) capable of frustrating the democratic will.
4.28.2009 4:17pm
Anderson (mail):
That's tricky, because you creating an independent source of power inside the executive branch (since, iirc, department counsel and ig's cannot be fired at will by the POTUS) capable of frustrating the democratic will.

But the laws themselves are creations of that will, as is the Constitution.

If the President is advising illegal conduct, then those who think it's illegal have a duty to that democratically promulgated law.

... In practice, it would obviously have to be something pretty damn egregious to inspire that kind of backbone. You would've thought that FREAKIN' TORTURE would qualify, but it seems not. Maybe genocide would still raise some eyebrows.
4.28.2009 4:44pm
Anderson (mail):
Re: OLC, Tamanaha quotes Bradbury's 2005 memos:

By delegation, the Office of Legal Counsel exercises the Attorney General’s authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law….

Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned….

Over the years, OLC has earned a reputation for giving candid, independent, and principled advice--even when that advice may be inconsistent with the desires of policymakers. This memorandum reaffirms the longstanding principles that have guided and will continue to guide OLC attorneys in preparing the formal opinions of the Office.


So if, say, Rizzo at CIA thought that OLC's ops were mistaken, he would still be bound by them and would have to comply or resign. (Of course there's the option of directly lobbying the AG or the White House.)

Tamanaha concludes that it's just this function of OLC that makes prosecutions of Bybee, Yoo etc. necessary -- to preserve the integrity of a very powerful office.
4.28.2009 5:04pm
Joe The Plumber:
Joe the Trolling Plumber: On a good day, even the torture advocates on these threads supply more than one-line comments, instead something backed with a little citation and evidence.

I greatly enjoy the fact that nothing you posted backed the assertion that confessions obtained via "torture" (again, what you are calling torture is not actual torture) was used "used to sell the war."

No such thing happened. Ever.

The casus belli was WMD. Period. And not matter how many words you type - sillly assertions deserve no more than a 1 line response - that won't change.
4.28.2009 8:18pm
Joe The Plumber:
But I don't think you can dismiss evidence with a one-line denial of its existence and a blanket statement that people who rely on this evidence are liars.

This:

according to newly declassified portions of a Defense Intelligence Agency document.
it was probable that the prisoner, Ibn al-Shaykh al-Libi, "was intentionally misleading the debriefers" in making claims about Iraqi support for Al Qaeda's work with illicit weapons.


Is not "evidence" it is assertion.

However, I'll be happy to point out to you the Clinton Administration believe that Iraq &AQ were active in weapons development.


The United States also claims it had other evidence linking the plant with chemical weapons production. That evidence includes links between officials at the facility in Sudan and an Iraqi official who has been labeled by U.S. intelligence as "the father of Iraq's chemical weapons program."

The Iraqi, identified as Emad Al Ani, is said to have had extensive dealings with officials at the plant in the Sudanese capital of Khartoum.

That and the connection between terrorism sponsor Osama bin Laden and Sudan's "military industrial complex" were enough to convince the United States that the Shifa plant was involved in chemical weapons production, the official said.



Further,


Richard Clarke, Daniel Benjamin and Steven Simon have all defended the intelligence surrounding al-Shifa from the beginning. The indictment referenced above was unsealed in November 1998. The 9-11 commission report notes that when Clarke read the passage above it "led Clarke, who for years had read intelligence reports on Iraqi-Sudanese cooperation on chemical weapons, to speculate to Berger [National Security Advisor] that a large Iraqi presence at chemical facilities in Khartoum was probably a direct result of the Iraq-Al Qida agreement.


No matter, it is all down the memory hole now...
4.28.2009 8:33pm
Joe The Plumber:
Anyway, I did enjoy this from Michael Scheuer


Americans should be clear on what Obama has done. In a breathtaking display of self-righteousness and intellectual arrogance, the president told Americans that his personal beliefs are more important than protecting their country, their homes and their families. The interrogation techniques in question, the president asserted, are a sign that Americans have lost their "moral compass," a compliment similar to Attorney General Eric Holder's identifying them as "moral cowards." Mulling Obama's claim, one can wonder what could be more moral for a president than doing all that is needed to defend America and its citizens? Or, asked another way, is it moral for the president of the United States to abandon intelligence tools that have saved the lives and property of Americans and their allies in favor of his own ideological beliefs?


I guess he doesn't know what he's talking about. Just another "torturer" I suppose...
4.28.2009 8:35pm
Anderson (mail):
Scheuer has the disadvantage of being a prime target for prosecution. It tends to bias one's view of things.

One might as well credit George "Slam Dunk" Tenet.
4.28.2009 9:03pm
Vermando (mail) (www):
Mahan Atma - Do you have a cite for the NY v. Stein case? I find the question of how much you can rely on the quality of the advice given as evidence of bad faith in and of itself quite interesting. Many thanks in advance.


Assuming, arguendo, that the treatment of detainees included actions which constitute torture as matter of law (I realize people are still arguing about this): we have a situation where (1) a crime, torture, was committed; (2) the OLC attorneys wrote memos with the intent of faciliating interrogation by methods that (regardless of the OLC attorneys' beliefs as to the state of the law) do legally constitute torture; (3) the OLC attorneys agreed that their actions in writing the memos were meant to assist in the conduct of such interrogations. That looks to me like conspiracy liability.

This seems quite interesting. Anybody know enough about conspiracy law to confirm / comment?
4.28.2009 9:08pm
Barry P. (mail):

what could be more moral for a president than doing all that is needed to defend America and its citizens?


Maybe the one thing he is tasked with above all else: defending the Constitution. What's the point in fighting monsters if we decide to become monsters in the process?

Bush's decision to torture cost more American lives than it saved, and it cost this nation any credibility in arguing against torture by others. Of the many stupid, myopic and vile things Bush did, this is probably the stupidest, most short-sighted and vilest. The upside is that this will go down in history as another Jim Crow or Joe McCarthy, and the GOP will be severely tarnished for a long time by defending it so vigorously.
4.29.2009 12:35am
jukeboxgrad (mail):
Kmiec et al on Bybee:

…There is nothing out of the ordinary about Bybee's six years on the bench, says Douglas Kmiec… . He is efficient, moderately conservative and issued no landmark rulings. But the recently released memo that Bybee signed when he ran the Office of Legal Counsel? That's another matter, says Kmiec.

"It's a very disturbing memo … I don't think there's any member of the American public — let alone the legal profession — who would not be disturbed by what's described there."

But Kmiec says he has special reason to be disturbed — he himself was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush, and he thinks the memos' detailed description of how each mode of harsh interrogation may be legally used suggests that the CIA was already engaged in the practices the memo approved.

"The look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office," he says.

…The expansion of presidential power in wartime is one of Yoo's signature issues. Bybee may have trusted his deputy too much, says Kmiec. "It's like lending your car to a co-worker and coming down to the garage at the end of the day and discovering it to be a wreck," Kmiec says. "You would want to ask a few questions."

But Bybee tended to avoid confrontations, says another longtime friend, Christopher Blakesley. The two men taught at two law schools together, first at Louisiana State and then UNLV. "He's a guy who's very kind on an individual basis, but he can't stand a fight," Blakesley says. "He'll do anything to avoid a fight."

Blakesley last saw Bybee in 2004 — that was the day that the first of the so-called torture memos Bybee authored was leaked to the public. "And it just so happened we were having dinner that night with the family. I had to tell him I found it abhorrent, and how could he sign it?" Blakesley says. What did he say? "I think he said, 'It's an awful situation — I can't talk about it.' "

And Bybee's not likely to be talking about it anytime soon, not with government investigations, possible criminal charges and calls for impeachment hanging over his head.


But Bybee has been talking:

Official Defends Signing Interrogation Memos …

Bybee broke his silence on Tuesday and defended the conclusions of legal memorandums he had signed…

Bybee… said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture.

…Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said. “The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Prof. Christopher L. Blakesley, a colleague on the law school faculty at the University of Nevada, Las Vegas, said that after the first memorandum was released, he was unable to restrain himself from expressing disagreement at a 2004 dinner at a restaurant that included their wives. “I asked him how he could sign such an awful thing,” Professor Blakesley recalled in an interview. He said the judge replied that he could not talk about the matter. The dinner proceeded awkwardly, Professor Blakesley said, and they have not spoken since.

Professor Blakesley said that while he liked Judge Bybee, “he has some basic flaws including being very naïve about leaders. … He has too much respect for authority and will avoid a confrontation no matter what,” the professor continued.

In March 2004, before the first memorandum was disclosed, Judge Bybee spoke to about two dozen law clerks at the federal courthouse in Pasadena, Calif. It was part of a program in which judges discussed their earlier careers, and some of the clerks present said Judge Bybee talked about his time in the Bush Justice Department.

Two of the clerks recall his saying that much of the work was dull but that some concerned matters “so awful, so terrible, so radioactive” he doubted that the administration would ever disclose it. …

Another clerk at the luncheon, Nina Rabin, … said she found Judge Bybee’s remarks troubling because he suggested that his role as a lawyer could be divorced from whatever policy was being pursued. “He definitely offered a view that was sanitized,” she said, “and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening.” …

Judge Bybee, whose chambers are in Las Vegas, is generally well-regarded by his colleagues on the United States Court of Appeals for the Ninth Circuit, which spans several Western states. Judge Betty Fletcher, a member of the court for 30 years, said in a statement: “He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.”


The very picture of a compliant, careerist bureaucrat. The road to hell etc.

The banality of evil is a phrase coined by Hannah Arendt and incorporated in the title of her 1963 work Eichmann in Jerusalem: A Report on the Banality of Evil. It describes the thesis that the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.


Of course we are different than the Nazis. Trouble is, not different enough:

… as I was reading the Bush administration's torture memos, I was also finishing Richard J. Evans's "The Third Reich at War." It is the last of his masterful trilogy on Nazi Germany and, like his two previous works, contains the sort of detail that assaults the eyes, overwhelms reason and instructs what we -- yes, ordinary people -- were capable of doing.

I know it is offensive to compare almost anyone or anything to the Nazis, but the Bush-era memos struck me as echoes from the past. Here, once again, were the squalid efforts of legal toadies to justify the unjustifiable. Here, again, was a lesson that needs constant refreshing: Before you can torture anyone, you must first torture the law. When that happens, we are all on the rack.
4.29.2009 8:16am
Joe The Plumber:
Bush's decision to torture cost more American lives than it saved

Something you couldn't possibly prove.

and it cost this nation any credibility in arguing against torture by others

Alternatively, people who are calling things "torture" which indeed are not, have no credibility.
4.29.2009 11:55am
Joe The Plumber:
Scheuer has the disadvantage of being a prime target for prosecution.

Because you say so, right?
4.29.2009 11:58am
Andrew J. Lazarus (mail):
Well, Joe, I'm glad you figured out how to post two full sentences.

Next up: why was waterboarding torture when done by Japanese? Why is our waterboarding appratus in the Cambodian Museum of Torture? Why do two columnists from the pro-Bush conservative rag National Review admit waterboarding is torture?

Alas, your assertion that what we are talking about here is not real torture is (like so much else you have said) unsupported.

Michael Scheuer is an architect of our torture program. If torture doesn't work, then he has no excuse for being a war criminal. Johannes the Plumber had no trouble excusing Auschwitz because he was scared of Judeobolshevism; human capacity for self-deception in these circumstances is great.
4.29.2009 1:40pm
jukeboxgrad (mail):
joe:

Bush's decision to torture cost more American lives than it saved


Something you couldn't possibly prove.


Torture does cost American lives. Some evidence for that is here.
4.29.2009 10:14pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.